Developments in other countries
Reform of partial defences and separate homicide offences
6.39A number of jurisdictions, while recognising that self-defence may be inaccessible for some victims of family violence who commit homicide, have preferred to pursue reform in the area of partial defences (and some have pursued reform of partial defences concurrently with reforms to self-defence). Such reform has come in the form of amendment to existing partial defences (most notably provocation) or the introduction of new partial defences, either specific to victims of family violence or of general effect.
6.40The different partial defences that exist in other jurisdictions, and recent reforms to improve their application to victims of family violence, are discussed below.
Reform of provocation
6.41Provocation is the most notorious, and only, partial defence that has at some time been a part of the law in all of New Zealand, Australia, England and Wales, Ireland and Canada. Each jurisdiction has, however, reviewed and, with the exception of Ireland, reformed or repealed the defence. While not all jurisdictions that retain provocation have a mandatory life sentence for murder, that sentence remains in England and Wales, Canada and Ireland, as well as in Queensland, ACT, Northern Territory and South Australia.
6.42Provocation in the context of family violence is widely regarded as problematic for two reasons. First, because provocation requires a sudden loss of control, it is often argued that provocation does not truly reflect the reality of the experiences of victims of family violence, who are responding to prolonged and serious violence, and may not be available at all where a victim of family violence kills their abuser some time after the provocation has been endured. In that way, it is argued that provocation fails to apply equitably to victims of family violence. Second, provocation can operate to partially excuse perpetrators of family violence who kill their victims in circumstances that are unexceptional, for example, where relationships break down.
6.43In Australia, provocation was first abolished in Tasmania, in 2003. Victoria followed suit in 2005 (following the recommendation of the VLRC) and Western Australia in 2008 (on the recommendation of the Law Reform Commission of Western Australia).
6.44In the remaining Australian states, provocation has been retained but modified. In New South Wales, provocation was amended in 2014 following an inquiry by a Parliamentary Select Committee established to inquire into provocation. Amendments were introduced to make provocation more accessible to victims of family violence by providing that the provocative conduct need not have occurred immediately before the killing. Changes were also made to limit the partial defence to “gross provocation”.
6.45The Queensland Law Reform Commission, during a review of the defence of provocation in 2008, concluded that “there can be no doubt that the law of provocation, as it presently works in Queensland does not satisfy the test of substantive gender equality”. However, the Commission nonetheless recommended retention of provocation on the basis that the mandatory life sentence for murder would remain. Rather than amending provocation to better accommodate victims of family violence who kill their abusers, the Commission recommended the creation of a specific partial defence, discussed at paragraphs 6.52–6.60 below. It did, however, recommend reform of provocation to ensure it was not available to those who kill out of sexual possessiveness or jealousy.
6.46In Northern Territory and ACT, the defence was amended to exclude cases where the “provocative” conduct was a non-violent sexual advance. In Northern Territory, provocation was also amended to make it more accessible to victims of family violence by removing the requirement for a “sudden” response.
6.47Most recently, the Attorney-General of South Australia has ordered an inquiry into provocation, and the state’s Green Party has introduced a Bill to exclude the defence in non-violent homosexual advance cases.
6.48In Ireland, following a review of homicide defences, the Law Reform Commission of Ireland recommended retention of provocation subject to reform. The Commission noted that the traditional requirements of the defence are based on “male norms and male emotions” and elevate male modes of retaliation. That is despite the fact that, in some cases, notably domestic violence, “a provocative act may produce a delayed action effect”. Thus, the Commission recommended provocation should not be excluded just because the act causing death did not occur immediately after provocation. However, that recommendation is yet to receive a legislative response.
6.49In Canada, while provocation has not been the subject of any law reform activity, it has been the subject of more than 30 years of debate and attention in case law. Commentators have proposed varying approaches to reform. As early as 1984, the former Law Reform Commission of Canada recommended the national abolition of provocation, arguing that it would be more appropriately dealt with in sentencing for second-degree murder. However provocation remains, as described by one commentator, as “distinctly traditional and masculine”.
Recasting provocation as “loss of control” – the English experience
6.50In 2010, England and Wales abolished provocation but replaced it with a similar-but-different defence of “loss of control”. The amendments followed a review by the Law Commission for England and Wales of partial defences to murder in 2004. The partial defence of loss of control is restricted to cases in which the defendant is responding to a “qualifying trigger” that constitutes “circumstances of an extremely grave character”, which “caused [the defendant] to have a justifiable sense of being seriously wronged”. The fact a thing “said or done constituted sexual infidelity” is not a qualifying trigger, but losses of self-control “attributable to [a defendant’s] fear of serious violence from [the victim] against [the defendant] or another identified person” may be. The defence is:
… designed to make a formal statement of symbolic value, in this instance by turning on its head the law’s former implicit endorsement of male violence against unfaithful wives in the way that it shaped the categories of admissible provocation (“qualifying triggers”).
6.51However, commentators have criticised this approach as being overly complicated, adding to the increasingly complex role now required of the jury in homicide trials. The VLRC considered but rejected this model on the basis that:
In our view, the provision proposed by the Law Commission [for England and Wales] does not overcome the very real concerns we have about provocation providing a proper basis for a defence. In particular… it remains an overly subjective assessment of what constitutes sufficient provocation, and involves speculation about how a person might have reacted in the circumstances. While recognising anger as a possible motivator, the provision explicitly excludes actions carried out “in premeditated desire for revenge”.
A specific partial defence for victims of family violence – the Queensland approachTop
6.52In 2010, Queensland introduced a new partial defence in respect of “killing for preservation in an abusive domestic relationship”. If successfully argued, it reduces murder to manslaughter where:
(a)(a) the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and
(b) the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and
(c)the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.
6.53Few cases have considered this new defence. In the first that did so, R v Falls, the defendant was acquitted on the basis of self-defence.
6.54The introduction of a specific partial defence was (and remains) a novel approach, and to understand the motivations behind it, it is important to comprehend the circumstances that led to its introduction.
The Queensland Law Reform Commission’s review of provocation
6.55The specific partial defence was introduced following a review of provocation by the Queensland Law Reform Commission. As noted at paragraph 6.45, during that review the Commission recognised the challenges in relying on provocation where a victim of family violence kills sometime after the provocation has been endured.
6.56The Commission recommended that priority consideration be given to “development of a separate defence for battered persons which reflects the best current knowledge about the effects of a seriously abusive relationship on a battered person, ensuring that the defence is available to an adult or a child and is not gender-specific”. That recommendation was made in the context of the following:
(a) Limited terms of reference. The Commission did not review the law of homicide and defences to homicide in full, and accordingly, it did not review the position of a victim of family violence who kills in circumstances in which provocation cannot apply.
(b) A substantially narrower defence of self-defence compared to other Australian jurisdictions. In Queensland, self-defence requires a reasonable apprehension of death or grievous bodily harm caused by an unlawful and unprovoked assault. It is therefore extremely difficult, if not impossible, to apply self-defence to a victim of family violence who kills in the absence of an imminent threat.
(c) The existence of a mandatory life sentence for murder in Queensland and a clear direction of “the Government’s intention not to change law in this regard”.
6.57The Commission considered amending provocation to meet the reality of victims of family violence. However, unlike other Australian jurisdictions, it considered that this would unduly distort the defence to such a degree that it could no longer be understood as provocation. Accordingly, the Commission recommended a separate, tailored offence, motivated by the concern:
… that the battered person who intentionally kills his or her abuser, in circumstances in which the partial defence of provocation cannot apply, is unable to have his or her situation taken into account in mitigation of the mandatory life penalty of murder.
Criticisms of the Queensland approach
6.58Some commentators have criticised the Queensland approach on the basis that it may jeopardise a claim to self-defence and thus leave defendants in an “invidious position as compared to their interstate counterparts”. That is because the partial defence echoes the Australian common law test for self-defence, but unlike self-defence, which results in an acquittal, Queensland’s partial defence only reduces murder to manslaughter.
6.59These concerns were noted by the Australian and New South Wales Law Reform Commissions in their 2010 report on family violence and homicide defences. The Commissions also noted that Victoria, Western Australia and New Zealand have all considered and recommended against a specific partial defence. Each of those jurisdictions preferred that attention be directed to ensuring self-defence reflects the experiences of primary victims of family violence. The Australian Law Reform Commission, in a submission on the NSW Select Committee’s review of provocation, argued against specific offences to cater for the family violence situation.
6.60Most recently, the Law Reform Institute of Tasmania considered the Queensland approach, but concluded:
After considering the submissions received and the literature in relation to specific defences for family violence, the Institute’s view is that a partial defence should not be introduced. It is unnecessary in a jurisdiction, which unlike Queensland, has a broad and flexible self-defence test and discretionary sentencing for murder. Similarly, the Institute does not support a separate, complete defence for self-defence in cases of family violence but considers that procedural changes should be made to allow the current defence to more accurately and thoroughly recognise the circumstances of those who use violence in response to prolonged family violence.
Excessive self-defence and defensive homicideTop
6.61Excessive self-defence applies to actions that are defensive in nature but where the force used is not reasonable but disproportionate. It was historically a part of the Australian common law, but it was abolished by the High Court in Zecevic. In recent years, it has been reintroduced by Victoria (in the form of a separate offence of “defensive homicide”, discussed below), New South Wales, South Australia and Western Australia.
6.62New South Wales and Western Australia reintroduced excessive self-defence in 2002 and 2008 respectively. Western Australia did so in conjunction with reforms to self-defence (discussed at paragraphs 6.27–6.29 above) and the abolition of provocation and the mandatory life sentence for murder. As in Victoria, a key rationale for Western Australia’s introduction of excessive self-defence was the accommodation of primary victims of family violence who committed homicide but who could not successfully rely on self-defence. There was a concern that, without a partial defence, “some women may be unjustly convicted of murder if the extremity of their circumstances was not recognised in a trial”.
6.63Excessive self-defence is not recognised in Canada, and it has been resisted by women’s groups on the ground it might “normalise” manslaughter as the appropriate legal outcome in cases where battered women should be acquitted on the basis of self-defence.
Defensive homicide in Victoria
6.64In Victoria, while reforms to improve the accessibility of defences to victims of family violence primarily focused on self-defence, the VLRC also recommended the introduction of a partial defence of excessive self-defence. This was intended to act as a “halfway house” between acquittal on the basis of self-defence and conviction for murder for victims of family violence who could not rely on self-defence.
6.65The VLRC’s recommendation was adopted in 2005 in the form of an offence of “defensive homicide”. However, while it was intended to provide for victims of family violence who could not rely on self-defence, it was not limited in such a way. Fairly quickly, concern arose that defensive homicide was producing perverse results. As with provocation, it tended to be the refuge of violent men. In 2013, the Department of Justice reported on the operation of the offence and found almost all cases in which it had been invoked involved violent confrontations between males.
6.66In that review, the Department of Justice considered whether the offence should be amended to apply only to family violence cases but ultimately recommended outright repeal. It considered limiting the offence would “treat those who act in excessive self-defence differently” whereas “the law should apply equally to people who have the same state of mind”. It further concluded that defensive homicide was undesirably complex (especially for juries) and may have “distorted the legal landscape” insofar as:
[t]he focus of debate concerning women who kill in response to family violence has become about defensive homicide, not self-defence. It should be the other way around.
6.67The offence was abolished in late 2014.
6.68Diminished responsibility has its origins in Scottish common law. It was introduced to England by statute in the 1950s and is a partial defence in Canada and, as of 2008, Ireland. In Australia, it is provided for in statute in Queensland, New South Wales, Northern Territory and ACT.
6.69Diminished responsibility was considered, but rejected, by the VLRC and the Law Reform Commission of Western Australia. The VLRC noted that it had been argued that introducing diminished responsibility would only serve to entrench misleading stereotypes of women, by attributing the homicide to a psychological disturbance rather than a defensive reaction to ongoing and severe family violence.